Privilege is a key issue for in-house counsel and their clients. In some litigation proceedings and regulatory investigations, cases have been won or lost on a single email in which a party had sought unsuccessfully to assert privilege. Privilege is particularly tricky where communications can relate to a combination of legal and commercial advice. An awareness of the pitfalls is key to maximise the prospects of privilege being obtained and retained where appropriate.
Firstly, it is worth considering the various types of privilege:
Legal advice privilege
• Protects confidential communications between a lawyer and client where the lawyer is acting in the course of their professional relationship and within the scope of their professional duties for the purpose of seeking / giving legal advice and assistance in a relevant legal context.
• Protects confidential communications between a lawyer and client and between either of them and a third party for the dominant purpose of fighting adversarial proceedings where adversarial proceedings are in existence or in reasonable contemplation.
Without prejudice privilege
• Protects written or oral communications between parties made with the aim of genuinely attempting to settle the dispute.
Joint interest privilege
• Arises pursuant to a joint retainer or where parties have a joint interest in the subject matter of the communication at the time that it comes into existence.
Common interest privilege
• Is the voluntary disclosure of privileged documents to another party where the other party has a common interest in the subject matter of the communication when the communication is disclosed.
If a document attracts privilege status, it is vital that this is not lost. There are a number of ways privilege can be lost, including:
• loss of confidentiality of the document; and
• waiver (either implied or imputed from conduct).
Therefore, it is fundamental businesses are educated about privilege. As part of this learning, do ensure:
• the business knows to contact the in-house / external lawyers before creating any document concerning a contentious or sensitive issue;
• the business knows to frame their communications as requests for advice (if it is reasonable to do so);
•privileged documents are marked accordingly;
• that client relationships with third party advisers are properly documented;
• the business is aware legal advice provided by in-house counsel is not privileged at an EU level and documents which are privileged in England may be disclosable in foreign proceedings.
Further, do not:
• assume that marking documents ‘privileged’ will make them privileged;
• allow the client business to conduct internal exercises without considering whether they should be managed or supervised by an in-house / external lawyer;
• refer to the contents of privileged documents in correspondence with the other side, witness statements or statements of case;
• allow legal advice to be circulated too widely within the business;
• allow people to produce their own accounts of sensitive or contentious issues
Fundamentally, warn the business that if it would not put its intended communication on the company letterhead, do not put it in an email or other document!
Bill Gilliam – partner
Susan Garrett – partner